ExxonMobil is leading the charge for Big Oil entities in moving two new climate-related lawsuits filed against the entities in June from state court to federal court, arguing the cases brought by the attorneys general of Washington DC and Minnesota are “political acts” seeking to dictate climate policy. Attorneys General Keith Ellison of Minnesota and Karl Racine of the District of Columbia filed their cases on June 24 and June 25, respectively, in state and local courts alleging Big Oil violated state and local consumer protection statutes by misleading consumers about the climate consequences of their fossil fuel products. Defendants in the Minnesota case include ExxonMobil, Koch Industries and two Koch subsidiaries, and the main U.S. oil and gas trade association, the American Petroleum Institute. Defendants in the DC case include ExxonMobil, Chevron, BP, and Shell.
In an expected procedural move, lawyers for Exxon filed notices of removal to shift the two cases to federal courts, a tactic that fossil fuel companies have used in all climate-related lawsuits filed against them because they have seen some success in getting several climate cases dismissed in federal courts. The U.S. Supreme Court in 2011 nixed a case (AEP v. Connecticut) brought by a group of states against power plants, and more recently two federal district judges in California and New York dismissed cases brought by Oakland and San Francisco and by New York City against Big Oil seeking compensation for climate damages. The cities have since appealed, and the San Francisco and Oakland case is now a step away from moving ahead in state court.
Exxon filed a notice of removal on July 17 to transfer the DC case from the DC Superior Court (the equivalent of a state court) to the federal U.S. District Court for the District of Columbia. Ten days later on July 27 Exxon did the same for the Minnesota case, moving it from the Ramsey County District Court (a Minnesota state court) to the federal U.S. District Court for the District of Minnesota.
In both notice of removal filings, Exxon characterizes the lawsuits as a “product of special interest groups and plaintiffs lawyers’” looking to bring down the fossil fuel industry and overtake the federal government’s role in addressing climate change. The Attorney General is “not entitled to use state power to suppress speech and deter free association as part of a coordinated campaign to change federal climate and energy policy,” Exxon lawyers write in the notice of removal for the Minnesota case. According to Exxon, the complaint in both cases “intrudes on the federal political branches’ exclusive authority to address important issues of national and international policy.”
“The Complaint is a political act, not a legal one,” Exxon’s lawyers write in both notices of removal.
Exxon offers multiple grounds for removing the cases to federal courts. Exxon says the cases raise “substantial federal questions,” that they “necessarily arise under federal common law” and arise out of federal enclaves, that they implicate federal statutes like the Outer Continental Shelf Lands Act and the Federal Officer Removal Statute, and alternatively that the cases are really class actions brought on behalf of DC and Minnesota citizens and are removable to federal court on those bases.
Exxon has also filed a notice of removal to federal court in a similar case claiming violation of the DC Consumer Protection statute brought by an environmental group called Beyond Pesticides. Exxon is the sole defendant in that case, filed in May, and Exxon sent the notice of removal on July 6.
Despite attempts by Exxon and fellow oil companies to remove these cases to federal courts, a handful of federal judges have now rejected these moves and sent (remanded) climate liability cases back to state courts. Most of these cases are brought by cities and counties under legal claims such as nuisance and trespass and some of the cases also include product liability claims; plaintiffs bring these claims under state common law, seeking monetary damages to help pay for costs of building sea walls and adapting to unavoidable climate impacts. But the Minnesota and DC cases, as well as a case brought last fall by the Massachusetts attorney general, are straightforward consumer fraud cases brought under (state) consumer protection laws, meaning it is even more unlikely federal courts will accept these types of cases.
A federal district judge in Massachusetts already rejected Exxon’s bid to move the Mass. AG case to federal court. That judge described Exxon’s arguments as a “caricature of the complaint” and said the case raises no federal issues. Massachusetts Attorney General Maura Healey sued Exxon on October 24, 2019 alleging violation of the Massachusetts Consumer Protection Act for allegedly deceiving investors and consumers about the risks of climate change.
As District Judge William G. Young explained in a May 28, 2020 order sending the Mass. case back to state court, the core issue in these consumer fraud cases is not climate change itself, but Exxon’s communications (such as advertising) about its products and their role in causing climate change.
“The Court concludes that the ‘problem’ at issue in this complaint is not geophysical but economic -- namely, has ExxonMobil been sufficiently candid with its investors and customers in Massachusetts about the simmering calamity of global warming?” Young wrote.